Request for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 26 September 2023
Appellant: Skatteministeriet
Respondents: Lomoco Development ApS, Holm Invest Aalborg A/S, I/S Nordre Strandvej Sæby and Strandkanten Sæby ApS
Articles in the EU VAT Directive
Artciles 12(1)(a) and (2), 135(1)(j) of the EU VAT Directive 2006/112/EC
Article 12
1. Member States may regard as a taxable person anyone who carries out, on an occasional basis, a transaction relating to the activities referred to in the second subparagraph of Article 9(1) and in particular one of the following transactions:
(a) the supply, before first occupation, of a building or parts of a building and of the land on which the building stands;
(b) the supply of building land.
2. For the purposes of paragraph 1(a), ‘building’ shall mean any structure fixed to or in the ground.
Member States may lay down the detailed rules for applying the criterion referred to in paragraph 1(a) to conversions of buildings and may determine what is meant by ‘the land on which a building stands’.
Member States may apply criteria other than that of first occupation, such as the period elapsing between the date of completion of the building and the date of first supply, or the period elapsing between the date of first occupation and the date of subsequent supply, provided that those periods do not exceed five years and two years respectively.
Article 135
1. Member States shall exempt the following transactions:
(j) the supply of a building or parts thereof, and of the land on which it stands, other than the supply referred to in point (a) of Article 12(1);
Questions
Is it compatible with Article 135(1)(j), and Article 12(1)(a) and (2), on the one hand, and with Article 135(1)(k), and Article 12(1)(b) and (3), on the other, of Directive 2006/112 (
1 ) for a Member State, in circumstances such as those in the main proceedings, to consider a supply of land on which, at the time of supply, a pre-cast foundation has been constructed
and on which a residential building is only subsequently constructed by other owners to be a sale of building land subject to VAT?
Source
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